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2012 DIGILAW 850 (MP)

RAMLAL v. PRAKASH

2012-09-03

PRAKASH SHRIVASTAVA

body2012
JUDGMENT : Prakash Shrivastava, J. This appeal u/s 173 of the Motor Vehicles Act, 1988, at the instance of claimant is directed against the award dated 28.6.2007 passed by Tenth Additional Motor Accidents Claims Tribunal in Claim Case No. 200 of 2005. The case of the appellant is that on 16.9.2005 the accident was caused by the loading rickshaw No. MP 09-KD 2993, in which the appellant had received injuries. The said rickshaw was driven rashly and negligently by the respondent No. 2. The appellant was admitted in the hospital and a report was made to the police. In the said accident the permanent disability was caused to the appellant, therefore, he filed the claim petition before the Tribunal. 2. The Tribunal by the impugned award has awarded a sum of Rs. 50,000 along with 6 per cent interest. A finding of permanent disability in the right hand has been recorded. The Tribunal has exonerated the insurance company on the ground that the respondent No. 2 did not have the driving licence. 3. Learned counsel appearing for the appellant submits that the Tribunal has committed an error in holding that the respondent No. 2 was not having the licence to drive the vehicle in question. He further submitted that the Tribunal has not awarded adequate amount keeping in view the nature of injury received by the appellant. 4. Learned counsel for the respondent insurance company has supported the impugned award and submitted that since it has not been proved that the respondent No. 2 was having a licence during the relevant time to drive the vehicle in question, therefore, insurance company has rightly been exonerated. He further submitted that the amount awarded by the Tribunal is just and proper. 5. I have heard the learned counsel for the parties and perused the record. 6. So far as the issue of the driving licence is concerned, the onus was on the insurance company to establish that the respondent No. 2 was not having a valid licence to drive the vehicle in question at the time of the accident. Insurance company in this regard has examined Mahendra Mandloi, Dy. Manager of the respondent insurance company. He has stated that an investigation was done by the insurance company but no investigation report has been placed on record. According to him, during the investigation the driver and owner of the vehicle were not available. Insurance company in this regard has examined Mahendra Mandloi, Dy. Manager of the respondent insurance company. He has stated that an investigation was done by the insurance company but no investigation report has been placed on record. According to him, during the investigation the driver and owner of the vehicle were not available. He has admitted that the investigation was not done by him and the person who had done the investigation has not been examined by the insurance company. The said witness has clearly admitted that he had no personal knowledge whether the driver was having a licence or not. He has also admitted that no information was sought from the R.T.O. about the driving licence. He has also admitted that no notice was given to the owner and driver of the vehicle to produce the licence. No other evidence in this regard has been adduced by the insurance company. Thus the insurance company has failed to discharge the onus to prove that the respondent No. 2 did not have a valid licence to drive the vehicle in question at the time of accident. 7. So far as registration of case under sections 279, 337, 338 of the Indian Penal Code and sections 3 and 181 of the Motor Vehicles Act against the respondent No. 2 is concerned, that alone is not enough to hold that the driver was not having a valid licence to drive the vehicle at the time of the accident. This court in the matter of Gopalkrishna v. Santosh, MACD 2010 (2) (MP) 704, while dealing the similar issue has held as under: (7) Learned counsel appearing for the appellant has relied upon the judgment of the Supreme Court in the matter of Rukmani and Others Vs. New India Assurance Co. and Others, (1998) 9 SCC 160 , wherein it has been held that it is the burden of the insurance company to establish that the driver was not having a valid licence to drive the vehicle. In the said case the insurance company though had relied upon the evidence of the Investigating Officer but the insurance company did not summon the driver and had not produced any record from the Regional Transport Authority, therefore, the Apex Court took a view that the insurance company cannot be exonerated. The Division Bench of this court in the matter of Jagdish and Another Vs. The Division Bench of this court in the matter of Jagdish and Another Vs. Raj Kumar and Another, (2002) ACJ 1124), has taken a view that when no record of the Licensing Authority is proved by the insurer it cannot be assumed that the driver of the offending vehicle was not having a valid licence to drive the vehicle. Even if no driving licence is produced on notice to owner and driver, then also no adverse inference against them can be drawn. (8) Similarly this court by the order passed in Ghanshyam v. Rajesh, M.A. No. 698 of 1999; decided on 3.12.2003, while dealing with the effect of registration of criminal case against the driver under sections 279 and 337 of Indian Penal Code and sections 3 and 181 of Motor Vehicles Act, 1988 has held that : The learned Tribunal has relied upon statement of Kamla Kant, DW 1, Surveyor and the unexhibited copy of final report, which was marked as Exh. C1 by the Tribunal itself wherein a charge-sheet under sections 3 and 181 of the Motor Vehicles Act, 1988 was also filed besides under sections 279 and 338 of the Indian Penal Code. From this evidence the Tribunal has concluded that Raju, R2, had no driving licence and was driving the Tempo unauthorisedly and has exonerated insurance company from liability. Certainly, Raju, R2, had not come forward to defence. He did not submit his written statement. Defence available to the insurance company have to be proved by the insurance company. Insurance company did not summon the driver. No record from Regional Transport Authority was produced. Kamla Kant, NAW 1, had not recorded the statement of Raju, R2. No written notice was given to him. No written reply was taken from him. No complaint to Motor Vehicle Inspector who was required to check whether Raju, R2, was holding a valid driving licence had been there. Thus, in view of Rukmani and Others Vs. New India Assurance Co. and Others, (1998) 9 SCC 160 , United India Insurance Co. Ltd. Vs. Mohd. Ashique and Others, (1998) ACJ 589 ; Jagdish and Another Vs. Raj Kumar and Another, (2002) ACJ 1124 ; and United India Insurance Company, Bangalore Vs. N. Srinivasa and Another, (2001) ACJ 800, the insurance company, R3, had not been able to discharge its burden. and Others, (1998) 9 SCC 160 , United India Insurance Co. Ltd. Vs. Mohd. Ashique and Others, (1998) ACJ 589 ; Jagdish and Another Vs. Raj Kumar and Another, (2002) ACJ 1124 ; and United India Insurance Company, Bangalore Vs. N. Srinivasa and Another, (2001) ACJ 800, the insurance company, R3, had not been able to discharge its burden. (9) The High Court of Rajasthan at Jodhpur in the matter of National Insurance Co. Ltd. Vs. Soni and Others, (2006) ACJ 1661, while considering the similar issue of the liability of the insurance company has held that even if the challan is filed against the driver of offending vehicle for not having any licence and even if the conviction takes place that cannot be a ground for holding that the driver was not having a valid licence to drive the vehicle. (10) In the present case the insurance company though had taken a defence in the written statement that the driver of the offending vehicle was not having a valid licence to drive the vehicle but no evidence was produced by the insurance company to establish the said fact. The insurance company has not produced any certificate from the concerned Transport Authority to establish the said fact. No investigation report has been placed on record by the insurance company to show that there is any infirmity in the driving licence of the driver of offending vehicle. (11) Thus, in the light of the aforesaid position in law it is found that the insurance company has failed to discharge its burden. The Tribunal has committed an error in holding that since the offence under sections 279 and 337 of Indian Penal Code read with sections 3 and 181 of the Motor Vehicles Act, 1988 has been registered against the driver of the vehicle, therefore, it is presumed that the driver was not having a valid licence to drive the vehicle. Such a presumption drawn by the Tribunal was contrary to the aforesaid judgment. 8. In view of the aforesaid, it is held that the insurance company has failed to establish that the respondent No. 2 was not having a valid licence to drive the vehicle at the time of accident. Thus the insurance company cannot be exonerated from its liability to pay the compensation amount. 9. 8. In view of the aforesaid, it is held that the insurance company has failed to establish that the respondent No. 2 was not having a valid licence to drive the vehicle at the time of accident. Thus the insurance company cannot be exonerated from its liability to pay the compensation amount. 9. So far as the quantum of compensation is concerned, the Tribunal has rightly noted that two fingers of the right hand of the appellant were amputated on account of the injuries received in the accident. Learned Tribunal has awarded Rs. 25,000 under the head of permanent disability and Rs. 25,000 under the heads of pain and suffering, treatment expenses and loss of income. Learned Tribunal has not awarded any amount under the heads of attendant charges, transportation charges, special diet, etc. The amounts awarded under the other heads are also slightly on the lower side. Therefore, the amount awarded by the Claims Tribunal is enhanced by a sum of Rs. 15,000, which will bear interest at the same rate as awarded by the Tribunal. The appeal is allowed to the extent indicated above. No orders as to costs.